NSW Health has begun an investigation into allegations published last week by Fairfax media that the recipient of a donated embryo covered up the fact of her successful pregnancy in order to mislead IVF Australia and sever ties with the embryo donors.
Natalie Parker and her husband had three spare embryos left over from previous treatment. They agreed to make them available to a couple who had been through multiple, unsuccessful IVF cycles.
It was a difficult decision for the Parkers because “those three extra embryos were their genetic offspring, potential siblings for their two young boys…and represented the same hopes and dreams they had for their living children”.
The embryo recipient met Ms Parker on the Embryo Donation Network, a website that “helps you to find the donor or recipient who is right for you”.
Initially both women hit it off. The recipients agreed to the Parker’s condition for ongoing contact between the two families, and for a relationship between the genetic siblings.
However, after the embryo was transferred, contact between the Parkers and the recipient ceased.
According to Ms Parker, the recipient advised IVF Australia that the two embryos transferred to her were unsuccessful in achieving pregnancy, and that she had begun her period.
A year later, IVF Australia asked the Parkers for instructions about the storage of the last-remaining of the three spare embryos they had donated.
Ms Parker found it odd, if indeed the transfer of the first two embryos had been unsuccessful, that the recipient had not shown any interest in the third embryo, which represented a further chance for her to fall pregnant.
Some months later, Ms Parker tracked the recipient down on Facebook and was shocked to see the photo of a baby boy on the recipient’s page who bore a striking similarity to her own children, and looked to have been born around the time the donor embryos were transferred.
She felt betrayed.
Fairfax media reports that Ms Parker believes the recipient became pregnant with her donated embryo, but chose to cut off all contact, intending to deprive the resulting child of contact with his genetic siblings.
“’I trusted them’, Ms Parker said of the recipients. “I feel taken advantage of, and incredibly sad that there is a child out there who I helped to create, and who is a part of me and my heritage, who potentially will never know where they came from”.
What happens when the relationship between donors and recipients breaks down?
In 2013, more than 12,600 babies were born in Australia as a result of assisted reproductive technology (ART) procedures, including in-vitro fertilisation (IVF), donor egg, and less frequently, donor embryo.
In New South Wales, the Status of Children Act supports ART procedures by making the “birth mother” of a donated egg or embryo the legal mother, and her husband the legal father.
The Human Tissue Act prohibits trading in tissue. This means that donors of eggs, sperm or embryos cannot be paid for making donations, although the reimbursement of reasonable expenses is permitted.
When couples who have undergone ART treatment are considering donating spare embryos that are no longer needed for their treatment, they may naturally wish to have some measure of contact with their genetic offspring.
Similarly, if a woman agrees to donate an egg to a woman or couple who need one, commercial incentives are absent. Egg donors must be willing to undergo an IVF cycle for the sole purpose of helping someone else.
The resulting environment is a competitive one. Recipients must compete for scarce donors and portray themselves as worthy. It’s a matter of “please like me”, “please choose me”. Saying this does not imply any criticism of donors.
According to Fairfax, the incident involving the un-named recipients “raises questions about the lucrative IVF industry’s commitment to ensuring the welfare of all its patients”.
To the extent that this is a criticism of IVF Australia for failing to definitively confirm whether the transferred embryos were successful in achieving pregnancy, it ignores the fact that IVF Australia had no way of “forcing” the recipient to return to IVF Australia, at her own expense, for tests to confirm whether or not the transfer of the donated embryos had failed.
Furthermore, if the result is successful, the recipient will have no further need for the services of the ART provider. The recipient will be free to seek pre-natal care elsewhere.
Usually a recipient of a donor egg or embryo will have no reason to hide the fact of pregnancy from the ART provider; after all, pregnancy is the shared goal of both parties.
In this case, however, the recipient evidently wished to be free of the conditions imposed by the embryo donors, which included contact between the genetic siblings.
A recipient who feels this way will obviously need to hide their preferences in order to create the necessary rapport that enables them to be chosen by the donors in the first place.
Fairfax media notes Ms Parker’s strong feelings that it would be in the best interests of the child for him to have ongoing contact with her own children.
The child’s best interests will arise as the key consideration when a court is making a parenting order following the breakdown of a marriage.
In this case, however, the parentage of a child born as a result of a donated embryo is clear: the “birthing parents” are the legal parents.
In my view it is certainly in the best interests of a child born as a result of an ART procedure that they should have the opportunity to make contact with their genetic parents when they reach 18. What is less clear is whether a genetically-related non-parent should be able to enforce the conditions on which they agreed to donate an egg or embryo – during childhood.
There would seem to be no reason, in principle, why the Family Court could not consider this issue under it welfare jurisdiction.
When exercising its welfare jurisdiction, the child’s interests will be paramount. It is clear that access rights by genetic parents or enforced contact with genetic siblings would not follow automatically. It would depend on the Court’s consideration of all the circumstances – assuming, in addition, that the welfare jurisdiction extended to making such orders.
Is it an offence to withhold information from an ART provider about a successful IVF pregnancy?
Fairfax reports that the recipient may have breached existing statutory requirements in NSW by providing false information to IVF Australia.
The Assisted Reproductive Technology Act requires ART providers to keep records of “the identity and any other prescribed information about each offspring born as a result of the ART treatment by the ART provider” (s 31(1)(c)).
This duty is further clarified in the Assisted Reproductive Technology Regulations (s. 14) which require the ART provider to keep records of (amongst other things) the name, sex and date of birth of each offspring born following ART treatment provided by that ART provider.
The Act contains an offence provision (s 62) for making a representation that is false or misleading in response to a request for information that (amongst other things) relates to the matters set out in s. 14 above.
This provision attracts a penalty of 200 units, currently $11,000
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